You are a passenger in a car driving down the highway when suddenly, there are bright red lights and sirens behind you. The driver pulls over. You are just a passenger and may think you have nothing to do with the stop. The reason for the investigation was the driver’s activity (speeding, failure to stay in the lane, etc.), but once stopped, you are “fair game.” Now, the cop is asking you questions.

The driver should keep their hand on the wheel at all times and not make quick movements with their arm. Meanwhile, the passenger should have their hands on their lap or, better yet, on the dashboard padding. This way, there can be no claims of fugitive or hidden moves. I would also turn on the overhead compartment light, making it easier for the Officer to see you in the car. Please be polite (so he can’t claim you’re resisting arrest)

Background

I am giving you my opinion, having taught self-defense Ju-Jitsu to many San Francisco police officers over the years, as well as my now-layperson’s opinion of the law (since I am now retired as an attorney). All cops are different; some will be kind, and many may be intense, but in general, I believe most police internally take the position that assumes everyone has something to hide until they prove themselves innocent. You have rights – but only if you verbally claim those rights. 

To understand my opinion of the cop’s position, you need to know how most of them operate. A big six-foot-two-inch tall S.F. police named Marcus stated the position well: “Well, Ted, we see too many bad guys, so we are exposed to more violence and risk than the average citizen can imagine. When we approach a car, we don’t know what to expect. And I want to go home to see my wife and kids at night. So, I assume maybe something bad is going on here until they prove to me everything is legitimate.”

Your Rights When They Stop the Car:

The courts have long held that when the police stop a car, the driver is legally “seized” during the stop. In other words, the driver has no right to leave the scene but must remain in or near the car during the stop. It wasn’t until 2007 that the United States Supreme Court ruled that a passenger in the vehicle is also considered “seized,” meaning that the passenger reasonably believes they are not free to leave the scene. The case is Brendlin v. California, 551 U.S. 249 (2007), and I ask you to remember that name so you can recite it to the police officer.

Can You Be Questioned:

Typically, an officer will eventually ask the passenger for their identification and inquire about their destination, as well as whether they will consent to a search of themselves and their property. The law is that the cops can only question and search you when (a) there is probable cause you committed a crime, (b) with a warrant from a judge, or (c) when you consent to the questioning or search.

Can You Be Arrested

In the Brendlin v. California case cited above, the passenger had methamphetamine in his possession, was arrested, and served four years in prison. In other words, once the police obtain your ID, they will usually run a check with dispatch looking for any outstanding traffic tickets, arrests, or other illegal activity. In theBrendlin case, the driver had nothing to do with the methamphetamine and was not arrested.

Unless you are absolutely sure you have nothing to hide or outstanding warrants for your arrests from a maybe long-forgotten traffic ticket, it is best to politely tell the police officers you exercise your Fifth Amendment right to remain silent. 

What Can You Say to the Police

“My Uncle Joe is a lawyer, and he told me that if the police ever stop me, I should say nothing without an attorney present. I have nothing to hide, and I understand you are just doing your job. But Uncle Joe says you cannot interrogate me unless (a) you have probable cause, (b) a warrant, or (c) my consent. Nor can you search me under the Fourth Amendment. I do not consent to answering questions or participating in a search. I am aware that, under the United States Supreme Court case of Brendlin v. California, I am legally considered “seized” and must remain here until you complete the investigation into the reason you stopped this vehicle. I won’t interfere in any way, and I am sorry my Uncle Joe says I can’t be more helpful.”

If the Officer persists in asking you again and again (as he probably will), answer, “I have already explained I am exercising my 4^th and 5^th amendment rights. Am I legally required to provide what you are requesting?” [The reason for the second question is that there are a few states that hold you must give police your ID.]

The Bombshell If You Remain Silent

This following statement may sound astonishing, but since 2013, the Supreme Court has ruled that it is the law. If the police ask you a question and you remain silent, the police can use your silence against you. For example, if the policeman asks if you have been using illegal drugs and you stay quiet, the cop can say an innocent man would not have remained silent. He would have said, “No, I don’t do drugs.” Your correct answer is, “Officer, I assert my 5^th Amendment right to remain silent.” If it still sounds unbelievable, see Salinas v. Texas, 570 US 178. You don’t need to remember the case name. 

Can the Officer Force Me to Step Out of the Car:

Generally, yes, you can be ordered to stop outside the car for “officer safety.” For more information, you can research the United States Supreme Court case of Maryland v. Wilson (1987). You don’t need to remember the name. Essentially, the case ruled that the greater the number of people in the car, the greater the danger to the police. Therefore, the minimal request to step out of the care is not an unreasonable violation of search and seizure.

Police Can Lie to You

In 1966, the United States Supreme Court handed down a decision that allowed police to lie and deceive individuals as long as they did not coerce a confession. In that case, the police lied and said the accomplice had confessed, ultimately leading to the suspect’s confession. The police are trained to use all the psychological tricks they know to trick you into confessing. Some everyday deceptions include:

1.         Small Talk. The most common, of course, is to start with small talk. The car might say I’m sorry I had to stop you, and I’ll explain wine in a minute. How are you tonight? I have a few questions. Tell me where you have been. The small talk relaxes you, and then he asks what seems like an easy and friendly question, such as where were you? Usually, they ask with a purpose. If you say, I was at a restaurant with a friend having dinner. Then the cop balls up for any other guys drinking? Usually, you say yes. Then he asks you if you’ve been drinking. As a passenger who is allowed to drink, you probably say yes. At this point, you have likely given the Officer probable cause to suspect the driver of drunk driving, and he will likely administer a field sobriety test to the person behind the wheel.

2.         Lie. I already discussed that the police have the right to remove you from the car for their safety, but usually, they will put the passenger on one side and the driver on the other. If there’s only one cop, he will move between the two of you. If there are two officers, they will each question you separately. They are looking for inconsistencies in your statements. But equally important, you don’t know what the other person is saying, and they can lie about what may or may not have been said. The cop could say, Come on, your friend, the driver, said he doesn’t know what’s in your bag, and if it contains anything illegal, he knows nothing about it. Does your bank have anything illegal in it? Can I look?” Meanwhile, of course, the driver said nothing, and you have just consented to a search. 

3.         Verify Facts. The police can lie about the existence of evidence, but they can’t fabricate evidence. It is unlikely that, at a traffic stop, they will ever say, ‘We found your fingerprints on something,’ or ‘We have a video of you doing ABC.’ However, if they ever do make such a statement, ask to see the fingerprints or video. 

4.         Lighter Sentence. Occasionally, police will suspect you have an illegal substance on you and say if you confess now, you will get a lighter sentence. First, you don’t have to (and should not) consent to a search without an attorney. Second, the cop doesn’t have the authority to decide the sentence; that responsibility lies with the district attorney.

How Long Can They Detain You

You should memorize the name of the 2015 case of Rodrigues v. United States. There, the Supreme Court has ruled that the police can only detain you as long as necessary to issue a ticket. After that reasonable period, under the 46th Amendment, which prohibits unlawful search and seizure, they must let you go. 

If the cop seems to be stalling or is thinking about looking around the car for anything (including a busted taillight), that might give him more evidence, say. “Officer, am I free to go.” If he doesn’t respond, say, as you know under Rodrigues v. United States, you can’t hold us for an unreasonable time. If he says, “You can go,” leave quickly. If he says no, then you say, “Officer, I refuse to consent to any search of myself or my property, and I exercise my right to remain silent. I want my attorney.” Be sure to state that loudly so that the Officer’s body camera (if it is recording as it should) will be able to pick up your statement. 

You Can Record the Police

Although California is a two-party consent law, meaning you cannot record a conversation without the consent of both parties, the law does permit videotaping or recording a police officer. It must be (a) on public property like streets, sidewalks, and highways, (b) while the Officer is performing his regular police duties, (c) the camera, SmartPhone, or recording must be in ordinary view of the Officer and not hidden, and (d) you must do so in a way that does not interfere with the Officer’s investigation. The laws of each state may differ, although courts are generally liberal, as seen in cases such as the 1920 George Floyd case. In California, the right is granted through your First Amendment rights.

You might also consider password-protecting your smartphone so police can’t access your information or delete a recording. 

As a practical matter, no cop likes being recorded. The first thing he will probably do is tell you that it is against the law. He is wrong, and you can tell him so. The second thing he might do is arrest you, even though he knows you’re going to get off. If he does arrest you, don’t resist arrest, and keep recording. Personally, I wouldn’t record unless the office takes significant offense at your refusal to give your name or consent to search. Then I would record, telling the Officer, “I have a legal right to record you in public during your normal police duties, but I don’t have the right to interfere with your investigation. If I get too close or interfere in any way, please let me know. I will immediately move.” One reason for recording is you can’t always count on the Officer’s body cam. Sometimes they “accidentally” forget to turn it on or “absentmindedly” put their thumb over the microphone so the recording is undecipherable. 

You might tell the Officer you are turning off your record for the moment. Then you might say, “Officer, why don’t we both calm down and talk more reasonably? You can make my night difficult. My uncle, the attorney, can file a lawsuit at no cost to me, and you will have to attend depositions and address any other issues with the department. If the arrest is found to be illegal and the court awards damages, I’m unsure whether you or the department will be responsible for paying that money. Is it perhaps in both of our best interests to just let us go? May I go now?”

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Ted is a retired attorney, so he is writing only as a layperson. This article provides general information only and should not be considered as specific advice for any particular situation. It is provided without express or implied warranties of any kind, including but not limited to implied warranties or merchantability or fitness for a particular purpose. If you have a specific problem, consult a CPA, attorney, or doctor for advice. Sorry, my attorneys made me say all tha